Marquette Law Review
Volume 27
Issue 4 June 1943
Article 11
Enemy Aliens - Access to American Courts During
Wartime
Kenneth E. Miller
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Repository Citation
Kenneth E. Miller, Enemy Aliens - Access to American Courts During Wartime, 27 Marq. L. Rev. 225 (1943).
Available at: http://scholarship.law.marquette.edu/mulr/vol27/iss4/11
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RECENT DECISIONS
v.. United States, supra. A registrant who has already been inducted into
military service may by writ of habeas corpus obtain a judicial determination as to whether the local draft board acted in an arbitrary manner. United States v. Grieme, supra. The case cited held that the writ of
habeas corpus was the only way to obtain judicial review of the decision of the local draft board, that the only point in issue in a criminal
prosecution for failure to report for induction was whether the regisstrant intentionally failed to report, that arbitrary action of the draft
board was not a defense to a criminal prosecution for failure to comply
with the order. United States v. Grieme, supra.
The theory underlying the decision in the case of United States v.
Grieme would seem to be that the registrant must submit himself to the
order of the draft board. Therefore, a writ of habeas corpus would be
in order. The theory of the Seele case in allowing the point of the validity of the draft board decision to be brought into issue would seem to
be that the registrant has some degree of choice as to whether or not he
will submit himself to the order of the draft board. Whatever the underlying theories, both methods of getting a review are well established
and probably will be continued in use, though seemingly in contradiction
with one another.
MERmIEM LumC.
War-Rights of Enemy Aliens in Our Courts.-Petition for a
writ of mandamus in the Supreme Court of the United States to compel
the District Court of the United States for the Southern District of
California to vacate a judgment dismissing an action on the ground
that the petitioner, a resident of the United States, is an alien enemy,
and to proceed to trial of his action.
The petitioner in this case, one Kumezo Kawato, was born in Japan,
but became a resident of the United States in 1905. On April 15, 1941,
he brought an action in libel against the vessel RALLY in the District
Court for the Southern District of California, claiming damages for
wages due him for services as seaman and fisherman on the RALLY.
He also alleged that he had sustained severe injuries while engaged in
the performance of his duties and sought an allowance for maintenance and medical expenses.
The owners of the vessel RALLY moved, on January 20, 1942, to
abate the action on the ground that Kawato, by reason of the state of
war then existing between Japan, his native country, and the United
States, had become an enemy alien and therefore had no right to "prosecute any action in any court of the United States during the pendency
of said war." The District judge granted the motion.
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[Vol. 27
The petitioner sought mandamus in the Circuit Court of Appeals
for the Ninth District to compel the District Court to vacate its judgment and proceed to trial of his action. This motion was denied. Leave
was then granted to file in the United States Supreme Court. In the
Supreme Court the writ of mandamus was issued, thereby granting the
petitioner the right to proceed with trial of his action, the court upholding the plaintiff's contention that he had the right under the common
law and treaties to proceed with his action, and that his right is not limited by the statutes. Ex parte Kumezo Kawato, 63 Sup. Ct. 115 (1942).
This decision raised a very pertinent question-that of the rights of
resident enemy aliens in our courts while a state of war exists between
the United States and their native country.
An enemy alien has been judicially defined as "one who owes allegiance to an adverse belligerent nation." Dorsey v. Brigham, 52 N.E.
303,304; 177 Ill. 250, 1898. Thus, for example, a citizen of Japan, residing in the United States at the time of the beginning of hostilities, automatically becomes an "enemy alien" and is subject to the restrictions
imposed on such class. A distinction must be made, however, between
enemy aliens and enemies of the United States. Thus, it was held in
Vowinckel v. First Federal Trust Company, 10 F. (2d) 19, App. D. C.
California, 1926, that an immigrant from Germany returning to Germany in 1915, and entering the service of the German army as a Red
Cross surgeon was not an enemy of the United States. German citizens,
residents of the United States during war were held not to be enemies
of the United States within the Trading with the Enemy Act. Reising
v. Dampfschiffahrts-Gesellschaft Hansa, 15 (2d) 259; (E.D. New
York, 1926).
The term "alien enemy," as used in the Trading with the Enemy
Act, is deemed to mean:
(a) Any individual, partnership, or other body of individuals, of
any nationality, resident within the territory (including that
occupied by the military and naval forces) of any nation with
which the United States is at war, or resident outside the
United States and doing business within such territory of any
nation with which the United States is at war or incorporated
within any country other than the United States and doing
business with such territory.
(b) The government of any nation with which the United States is
at war, or any political or municipal subdivision thereof, or any
officer, official, agent, or agency thereof.
(c) Such other individuals, or body or class of individuals, as may
be natives, citizens, or subjects of any nation with which the
United States is at war, other than citizens of the United
RECENT DECISIONS
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States, wherever resident or wherever doing business, as the
President, if he shall find the safety of the United States or the
successful prosecution of the war shall so require, may, by
proclamation, include within the term enemy. Trading with the
Enemy Act, Section 2: Definitions, 50 U.S. C.A. 189.
At common law an enemy alien resident could prosecute a civil
action. Petition of Bernheimer, 130 F (2d) 396 (E.D. Penn. 1941).
Again a distinction must be made, however, between resident aliens
and non-resident aliens. In the case of the Industrial Commission of
Ohio v. Rotar, 179 N. E. 135 (1931), the court said "it is an elementary
fact that, when a state of war exists, an alien enemy cannot prosecute
any claim in the courts of a country at war with his country." In this
case, the plaintiff, the widow of an employee killed in the 'course of
employment and seeking an award from the Industrial Commission,
was a resident of the Austro-Hungarian monarchy with which the
United States was at war. It was this fact which prevented her bringing
an action in the courts of the United States until hostilities had ceased.
In this case the court reasserts the common law rule that if the parties
to the litigation are residents of belligerent nations, one residing in one,
the other in the opposing contry, then the right of action is suspended
until the close of the war, at which time it may be asserted by the alien.
In Stumpf v. A. Schreiber Brewing Company, 242 Fed. 80 (W.D.
New York, 1917), the court held that the plaintiff, who became an alien
enemy, cannot continue an action at law or equity, or institute further
proceedings, until the war is ended, save in certain exceptional instances, as, for example, where commerce between nations at war is
continued, or where the plaintiff in actions for debt becomes an enemy
alien after verdict and judgment has been rendered. In the case here
mentioned, the plaintiff was a resident of Germany. His action was
begun before war was declared between Germany and the United
States, but the judgment in the case had not been rendered when a
state of war was declared to exist between his native country and the
United States. This decision is in accord with the principle that a suit,
properly brought by an alien against a citizen, will not be dismissed
because of a subsequent declaration of war between the United States
and the government of which the plaintiff is a subject, but may be suspended during the war. Plettenberg, Holthaus & Co. v. L I. Kalmon
& Co., 241 Fed. 605 (S.D. Georgia, 1917).
The reason for a former rule denying a resident alien who is a citi.zen of a country with which the United States is at war the right to
bring an action in the courts of the United States, namely, that the
money recovered would be withdrawn and added to the funds available
to aid the alien's country in the prosecution of the war no longer exists
I
THE MARQUETTE LAW REVIEW
in view of legislation providing for seizure of property belonging to
enemy aliens situated in the United States with licensing restrictions
governing their subsequent access to it. According to the Trading with
the Enemy Act, Section 6, the President may appoint an alien property
custodian who shall be empowered to receive all money and property
within the United States due or belonging to an enemy, or ally of the
enemy, which may be paid, conveyed, transferred, assigned, or delivered
to said custodian under the provisions of the Act. 50 U.S.C.A. 189.
The generally accepted rule, with which the present case is in accord,
is that the courts of the United Sattes remain open to citizens of an
enemy nation who are residing peaceably in the United States and under
its laws. Only non-resident aliens are barred from prosecuting action.
Uberti v. Maiatico, 44 F. Supp. 724 (D.C. of D. of C., 1942) ; Anastasio
v. Anastasio, 44 F. Supp. 725 (D.C. of D. of C., 1942); Stern v.
Ruzicka, 44 F. Supp. 726 (D.C. of D. of C., 1942).
One final point might be made in connection with the terms "enemy"
and "ally of the enemy." In the case of Sundell v. Lotmar Corp., 44 F.
Supp. 816 (S.D. New York, 1942), it was held that since Finland,
although formally at peace with the United States, was actively in concert with Germany in war against Russia which was an ally of the
United States, residents of Finland were "allies" of the enemy and
enemies of the United States and could not prosecute actions in the
United States for injuries sustained by negligence.
The principal case, then, is in accord with the weight of authority
in the United States, and restates several fundamental principles regarding alien's right as they are restricted in times of war:
(1) Any person, residing in the United States but not a citizen of
the United States, automatically becomes an "enemy alien"
upon declaration of a state of war between the United States
and his native country.
(2) Resident enemy aliens may still enjoy the right of the use of
the federal and state courts of the United States, even though
a state of war exist between the United States and their native
country.
(3) Non-resident enemy aliens may not begin an action in any
court of the United States while a state of war exists between
the United States and their native country.
(4) Actions pending in any court of the United States between a
non-resident enemy alien and a citizen of the United States
when a state of war is declared to exist are abated until the war
is over and may then be revived.
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KENNETH E. MILLER